Gross Negligence And Lack Of Informed Consent

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Gross negligence and informed consent cases are hard to win; most health care providers usually ask patients to sign a very detailed consent form before examination. Because of this step, it is difficult for a patient to prove that they were not in agreement with the procedure and did not know about any risk involved.

In terms of medical malpractice, the phrase 'gross negligence' is defined as an indifference to and a blatant violation of a legal duty with respect to the rights of others. For someone to be accused and found guilty of the act, it must be proven that they had a conscious and voluntary disregard for reasonable care of a patient, and caused foreseeable grave injury or harm to the patient. Some examples of gross negligence are when an operating surgeon amputates the wrong leg, or leaves a surgical instrument in the body of a patient. Instances like these are grounds for a patient to sue for damages.

The burden on former patients to prove gross negligence and claim to such damages is quite heavy. There are some states that will allow an individual who feels they are a victim of gross negligence to pursue medical malpractice claims to prove their case in court, without any expert witnesses being present at trial. This is what you would call "Res ipsa loquitur," which means things that speak for themselves. The term signifies that further details are unnecessary and that the facts of the case are clearly evident. The law can be enacted by patients to prove that the doctor was negligent in performing his duties admirably to the patient.

A lawyer or attorney who specializes in medical malpractice suits usually represents a case that constitutes the unauthorized treatment and lack of informed consent. By express statute or common law, mostly all states recognize the right to get information about one's medical condition before a procedure, as well as the choices of treatment that the patient chose and the risk involved with the treatment or procedure. The initial information that the patient receives from their physician, surgeon, or other medical professional must be in simple terms for everyone to understand. There must also be enough information that will help said patient to make an informed decision about the procedure, as well as the care and treatment they will receive afterward.

When the patient goes to the doctor and asked to sign a consent form, they are required to read the information given, permitting the doctor provides easy-to-understand information. At this point, it is presumed that the patient has given an informed consent. If a doctor does not get the informed consent form signed by the patient to perform a non-emergency treatment, this may be considered grounds for civil or criminal action, like the unauthorized touching of a patient.

If the patient is to win the case of unauthorized touching, he or she must prove that the doctor treated him or her without informed consent, and that he or she knew of the risks involved in not signing the informed consent form. When a gross negligence suit is brought, the attorney who represents the plaintiff may also attempt to sue all possible persons involved. Potential defendants in a negligence case could include the individual(s) who caused the injury, such as the doctor or surgeon; the facility where the injury occurred, such as a hospital or surgery center; the owner of the property, and any other person involved who may have played a part in causing harm to the patient.

Damages are the money the patient may receive if he or she can prove that the defendant(s) caused them personal injury and are legally responsible for the resulting harm. The amount of damages that a patient can sue for may range from the thousands to the millions of dollars. Damages are evaluated by a judge or jury. In many states, damages in negligence lawsuits can include, but are not limited to, compensation for:

The injury suffered
Damaged or destroyed personal property
Medical and hospital bills
Harm to marital relations (called "loss of consortium")
Lost earnings (past and future)
Physical and emotional "pain and suffering."

Punitive damages are another type of compensation a patient may receive as a result of winning their gross negligence suit. These types of damages are designed to punish the defendant and to discourage similar wrongful conduct by others. They are awarded by the court, only if the court feels the original compensation a plaintiff receives is not enough. If the defendant is found to have acted intentionally or maliciously, courts in several states might order the defendant themselves, or a legal entity, to pay the plaintiff these punitive damages.


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